Questioning Copyright · Thursday August 18, 2011 by Crosbie Fitch
In order to understand the conflict between the publishing industry’s 18th century privilege of copyright and the emancipating cultural liberty of the information age, we need to understand copyright’s history.
But, more important than the history of copyright or the law that created it, we need to understand rights.
Here are some questions for those who have already started to question what they’ve been taught about copyright in school, or elsewhere by the media, music and movie industries, and want to understand.
What is the most important thing to know about rights?
Rights precede law.
Our rights are not created by law.
Our rights are imbued in us by nature.
We, the people, create law to recognise our rights, and create and empower a government to secure them.
What are our rights?
Rights are the vital powers of all human beings.
We have rights to life, privacy, truth, and liberty.
- We have a right to life, to protect the health and integrity of our minds and bodies.
- We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
- We have a right to truth, to guard against deceit.
- We have a right to liberty, to move and communicate freely.
How then did government create a ‘right’ to prohibit copies?
No people creates a government to abridge, annul, or derogate from their rights in the interests of a few – or in Orwellian NewSpeak, the greater good.
However, a government is in a position to assume power beyond that provided to it by the people.
A government can assume power to derogate from the people’s rights in order to privilege a minority.
Indeed, these privileges, so called ‘legal rights’, are now so pervasive in society that we must qualify the rights we were born with as natural rights.
So, what is copyright?
What we call ‘copyright’ is an 18th century privilege.
It was granted by Queen Anne in her statute of 1709 for the ulterior benefit of the crown and its Stationers’ Company, so that the de facto printing monopolies established by the guild during its control of the press could become law.
The Stationers’ Company resumed enjoyment of its lucrative monopolies and effective control of the press.
The crown resumed its ability to quell sedition via indirect control of the consequently beholden press.
Why was this Statute of Anne wrong?
Privileges are unconstitutional, inegalitarian, and unjust.
Paraphrasing from Thomas Paine’s ‘Rights of Man’, the liberty and right to copy is, by nature, inherently in all the inhabitants, but the Statute of Anne, by annulling the right to copy in the majority, leaves the right, by exclusion, in the hands of a few – or, as we term them today, ‘copyright holders‘.
Consequently, copyright, as any privilege, is an instrument of injustice.
What is the consequence of granting copyright?
Copyright is now a cultural pollutant and has effectively created cultural gridlock. Today, individuals face jeopardy in any significant engagement with their own culture.
Morever, copyright fools the very same people into believing they have a natural right to control the use of their work.
Although we have privacy, the natural exclusive right to prevent others copying our work whilst it is in our possession, this does not provide us with the power to prevent others making further copies of what we give to them.
Such unnatural power is only provided by copyright, because that annuls everyone’s liberty and right to copy, leaving it in the hands of the copyright holder to restore by license.
Even so, to prosecute the privilege, to detect and sue infringers, can be very expensive, and tends to require the wealth and economies of scale of a large copyright exploiting publisher.
But then why has copyright lasted so long?
In the 18th century the press could be controlled.
In the last couple of centuries, when printing presses were relatively few and far between, the state and publishers, via their crown granted privilege, could expect to police and control the press.
Why can’t copyright work today?
Today, the press is us, the people
Today, we are all authors, all publishers, all printers.
We, the people, are the press.
To control the press is to control the people – a people supposedly at liberty.
What is the current approach to making copyright work?
The people are being ‘educated’ to respect copyright through draconian enforcement – severe punishments of a few as a deterrent to the many.
- 2005: Jammie Thomas-Rasset, 28, mother of 4, shared 24 files. Found liable for damages of $1.9m.
- 2005: Joel Tenenbaum, 22, shared 31 files. Found liable for damages of $675,000.
- 2010: Emmanuel Nimley, 22, iPhoned 4 movies and shared them. Sentenced to 6 months’ jail.
- 2011: Anne Muir, 58, shared music collection. Sentenced to 3 years’ jail.
- 2011: Richard O’Dwyer, 23, linked to sources of illicit copies. Faces extradition and prison sentence of up to 10 years.
Not only are publishing corporations trying to subjugate the people through extortion, intimidation, and fear, but the state is complicit, interested, as ever, in both pleasing their sponsors as well as quelling sedition.
Will we ever learn to respect copyright?
Mankind’s cultural liberty is primordial.
Our liberty, our natural right, our power and need to copy has never left us.
Our right to copy may have been annulled by Queen Anne, but youngsters are finding out every day that they innately possess the ability and instinctive need to share and build upon their own culture.
We will never learn not to copy, because to learn is to copy, and we will never stop learning.
Copyright is a historical accident, a legislative error made in a less principled era.
It is time to rectify that error, not the people.
Is that my mission then, to abolish copyright?
Copyright should be abolished, and the people should have their liberty restored, but my mission is not to abolish copyright.
My mission is, and has always been, to answer this question: “How can artists sell their work when copies are instantaneously diffused upon publication?”
Or putting it slightly differently:
“How can artists exchange their work for money in the presence of file-sharing, which effectively renders the reproduction monopoly of copyright unenforceable?”
The solution is the question.
Artists must exchange their work for the money of their fans directly – in a free market.
Artists can no longer sell their work to printers in exchange for a royalty of profits on monopoly protected prices.
The monopoly of copyright is no longer effective.
Its artificial market of copies has ended.
So, what is copyright’s future?
Copyright is an unethical anachronism. It still works as a weapon with which to threaten or punish infringers (with or without evidence), but even with draconian enforcement, the monopoly has ended.
When privileged immortal corporations collide with a population naturally at liberty, the latter will prevail, however draconian their ‘education’ by the former.
Nevertheless, without copyright, natural rights remain, e.g. an author’s exclusive right to their writings, truth in authorship, etc.
Moreover, the market for intellectual work can continue quite happily without a reproduction monopoly. Indeed, it will thrive.
Have more questions? See QuestionCopyright.org
Want more answers? See The Surprising History of Copyright and The Promise of a Post-Copyright World by Karl Fogel.
This article was previously published at ORG zine.
Further reading: The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise
“Our rights are imbued in us by nature.”
What exactly does this mean? It sounds like a bunch of nonsense to me. I can say I have the natural right to a pony if I want, that doesn’t make it true.
“Our rights imbued in us by nature” means that a right isn’t something we individually or collectively say we have, or decide we should have.
To discover our rights we must examine our own nature, we must determine what power nature has given us individually, and how it is balanced among all individuals in equilibrium (harmony).
A natural right is an individual’s natural power in equilibrium. A right is not the power of a strong man to crush a weak girl, but the equal power of all individuals to protect their lives, their bodies from harm, their dwellings from intruders, etc. Thus, a strong man may have more physical power in his body than a weak girl, but the strong man has the same right to protect his body as a weak girl has.
Powers given to people by the state, or by the crown as with Queen Anne in 1709, do not occur in mankind by nature. Whilst we have the natural power and right to prevent burglars stealing or making copies of our possessions, we are naturally unable to prevent our audience of a thousand singing the songs we sing to them, re-telling the stories we tell them, or making further copies of the pictures we sell to them. Indeed, people have a natural power and right to share and build upon the cultural and technological works they have. It is this right to copy, that we all have by nature, that was annulled by Queen Anne in 1709 to leave it, by exclusion, in the hands of a few – holders of our right to copy – copyright holders.
A few days ago, I were discussing this topics with my brother, and he noted the same sentence that Shii remarked and then he asked a similar question: why (or according to what) does the article’s author consider that this are the natural rights?
Crosbie, in your reply to Shii, you added:
It is this right to copy, that we all have by nature.
Why isn’t this right to copy listed with the other 4 fundamental rights?
May it be because the “right to copy” (and, by extension, the “right to do something that doesn’t violates other’s rights”) is a right derived from the “right to privacy and the right to liberty”?
Crosbie, your reply to Shii definitely shed some light on the topic of natural rights, but it also triggered some new thoughts on me.
I can agree that the 4 natural rights you list are pretty self-evident and very simple in their definitions, although, as most things constructed by words, there is an inherent flaw of semantics & interpretation.
Should that semantic issue be disregarded? Can we set & agree on a common base of significances? Are this 4 natural rights similar to axioms on logic & geometry? Or are we falling into great reductionism?
Crosbie’s reply to Shii also led me to note that, although the 4 natural rights may be imbued in humans by nature, it’s not until the human being reaches some kind of physical (and cultural?) maturity, that the human being can exercise his natural rights and use his natural powers.
It’s also pretty evident that a human baby cannot exercise/protect his natural rights, not even the very basic right to life. The baby must rely on someone else (a human adult, probably one of his parents) to survive during his early years of life.
Of course, this could be seen as a POV issue: the baby exercises his right to life by crying and asking for food.
This led me to two questions:
- may it be that what we call “natural rights” are just “acquired/developed abilities”?
- that this “need to rely on parents for survival” is what, eventually and for the whole mass of individuals (society), developed into a “parental state”?
Julián, to your first comment:
Rights may be enumerated, but the enumeration doesn’t create them, it simply recognises them.
Natural rights are self-evident, i.e. recognisable and demonstrable through an analysis of Homo Sapiens as a gregarious being in equilibrium with his fellows and environment.
The enumeration and nomenclature does not determine rights. We have a right to copy, not because it has previously been named and enumerated, but because it is self-evidently within our vital powers, within our right to liberty. We have been copying each other for aeons, and have evolved to do so, as any animal copies its parent. It is only upon a certain guild’s wish to excise this act from citizens’ liberty that the right to copy is singled out for identification, that it may be annulled in the majority by Queen Anne in 1709.
As to semantics, no. Rights are defined by nature (of the human being), not by the words we use to define them. The enumeration of rights simplifies our understanding and discussion of them. We could collapse life and privacy into a single right, e.g. ‘personal space’. But there is an observable boundary between the interior space of a body and its exterior space, and there is an according change in their nature. It is a sensible demarcation to divide this into life and privacy. As much as there is reductio ad absurdum, so there is entia non sunt multiplicanda praeter necessitatem. Four natural rights from which a panoply of others can be derived enables manageable discussion.
Julián, to your second comment:
Remember that rights are equalised powers, thus a weak child has as equal a right to life as a strong man.
That a child may be dependent upon their parent does not diminish their rights.
Rights are ‘acquired/developed abilities’ only in as much as Homo Sapiens has evolved from something akin to an amoeba.
One can create a government to protect rights, though anarchists argue that one can protect rights without needing to do so. One can also create a government and through taxation engineer a somewhat paternalistic state, e.g. healthcare, education, etc.
You are on both sides of the fence at once here. We have the natural right to copy, then in a Deazly article there is no natural right to copy. Artist should sell directly to their fans, but the fans are the press now with unlimited right to copy – how is the artist supposed to make any money if the value is instantly voided once the fans get their hands on the first copy and spread it? Give it up, we need copyright. You just don’t like the idea of big corporations owning those rights. Well, if you are an artist don’t sell the rights away. Simple.
Do not forget that any economic system (or any system of thought) is circular in its reasoning for justifying its principles. This economy is based on separation of property into individual ownership, protection of these boundaries, and animosity between owners in trying to obtain more property. Because we separate our property, we introduce scarcity into the system. Together, we have everything, but individually we often lack. Scarcity is then required to keep the system functioning. If there were abundant supply of anything, prices would drop and we would lose our ability to earn money and thus to survive. Abundance is our enemy. We can only sell our work if there is a limited supply of it, or, in the absence of that, we limit our supply ourselves.
Digital piracy is the key subverter and revealer of this system. Piracy shows that our system is not in line with truth. It cancels our suppositions and reveals them to be false. Abundance is natural and our system is at variance with what is natural.
There will never be a human rights-friendly solution to the copyright issue so long as this economic system, and the mindset that creates it, is in place. Abundance subverts the very foundation of our economy and it is meant to subvert it, because it is truth. Rather than subverting it, it simply cancels it. But the system will fight to protect and prolongate itself. Digital piracy alone is not enough to cause any big dent in the system, because it only pertains to information. But it shows us the path forward.
You can forget about any direct trading system that is based on the same principles that the greater system is based on, for artists to make enough money and earn a decent living. Artists that follow the path of scarcity in their minds and hearts will not thrive when scarcity is unenforcable.
Do not bite the hand that feeds you. First make sure you are being fed by another hand, then bite the old one.
so the right of a person to control the revenue generated from work they created, & to control how is copied is subjugated by the rights of the masses to have access to this work?
Your argument re the queen Anne Statue is pure obfuscation. with the enormous number of outlets available today, it is completely irrelevant. It has been whittled away overtime by democracy & free communications. Do people currently abuse copyright? yes, does this make copyright an invalid concept? no.
James, you may well prefer to believe that the author is born with a right to prohibit copies of their published works and that pirates are trampling it into non-existence. However, an understanding of natural rights and/or the history of copyright will show you that the right to copy is inherently in all the inhabitants, but that the Statute of Anne annulled it in the interests of crown and Stationers’ Company.
We are all born with the right to copy – today as well as prior to 1709. It is merely a law that says otherwise, that this right should be annulled and held, by exclusion, in the hands of ‘copyright holders’ for their commercial exploitation.
It is not that people abuse copyright, but that copyright abuses people. It is an instrument of injustice to be abolished, not to be supported.
Even if the majority vote for slavery this does not make slavery ethical. Natural rights precede government, and unlike government, are not subject to democratic modulation. This is why natural rights don’t tend to appear in educational curricula (they undermine the state’s assumption of power), though you may find reference to them via such things as the US Declaration of Independence
So in other words, the website aims to change the constitution – and any author, artist, musician, inventor, scientist, should not have the rights to their ideas. This is not liberty, this is statism, to say that we have a natural immediate right to other people’s ideas and creations. It’s also unconstitutional.
“The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
—U.S. Constitution, Article 1, Section 8, Clause 8
And to claim that creators “rights to their ideas” (which NOBODY will contest – I don’t see anyone trying to take away my IDEAS) extends to the the ideas, creations, property, data, and communications of other individuals is statism. That a creator can assert control over every copy and manifestation of their idea in existence is not liberty.
Do not insult creators by implying that our ideas are based on control of others actions and communications (i.e. copyright).